90
BRJ 01/2012
Wilder, “Bauhaus Drafting“
“Bauhaus Drafting”
Tips and Tricks for Modern English Language Contracts
Dr. Keith E. Wilder, LL.M., Bonn*
Topic 2: The correct use of will and must
As discussed in the Þrst instalment of this series on
English language contract drafting (see Bonner Rechtsjournal, Ausgabe 02/2011), modern legal writing style
requires clear, precise and consistent use of language.
This “Bauhaus” style of drafting moves away from the
legalese-laden contracts of years past and toward a more
contemporary approach that focuses its energy on precisely reßecting the party’s rights and obligations. In the
current and subsequent instalment of this series, I wish
to further explore the use of what is know as “operative
language” in structuring rights and duties in English language contracts.
The term “operative language” refers to those words in
a contract that dictate the duties, rights and privileges of
the parties to the agreement. In the previous instalment
of this series, I discussed at length the correct usage of
the word shall as the primary means of reßecting duties
in English language contracts. In this current instalment,
I wish to concentrate on the correct usages of two other
words that are, in certain limited contexts, also used to
create duties in English language contracts, namely, will
and must.
In order to appreciate the role and importance of the use
of such operative language, it is Þrst necessary to brießy
explore the role of the lawyer as the “legal structural engineer” of any contractual arrangement. As I often try to
impress upon my students, once upon a time, long, long
ago, there was a golden age when, besides the occasional
literate aristocrat, only priests and lawyers could read.
In those halcyon days, the lawyer was the master of the
written agreement in all its permutations. Unfortunately
for us, the literacy rate in the last hundred years has skyrocketed, thus no longer affording us this comfortable
monopoly.
Why then are lawyers still such an intricate part of the
contract making process? What do we bring to the table
*
The author is a law lecturer at the University of Bonn and University of Cologne; as well as the owner of AA Legal Consulting, a legal
training and consulting Þrm based in NRW.
that the other parties involved in the contract making process lack? Let’s see, taking the average business agreement as an example, the CFO clearly has a brain, maybe
two; the salesperson who brokered the deal knows more
about the subject of the negotiated agreement than the
lawyer drafting the contract could ever hope (or frankly
want) to know; and often the ofÞce secretary has a humbling mastery of English grammar and usage. The question then remains, if the CFO has two brains, the salesperson knows the ins and outs of the deal like the back of
his or her hand, and the secretary has master the present
perfect progressive – and they all can read – what place is
left for the humble lawyer? Have we become redundant?
Certainly not, thankfully. We of course have (or at least
should have) a working knowledge of the law itself that
we can bring to the table. However, in many contract
deals “black letter law” does not dominate the business
relationship being formed and is rarely overtly reßected
throughout the contract itself. Legal considerations, like
literally hundred of other considerations, factor into any
agreement, but most of the content of the contract itself
is dominated by the business or personal relationships
being created. So it brings us once again back to the
question at hand, why is it that the lawyer, rather than for
example the CFO, the salesperson or secretary for that
matter, writes the contract?
The reason is that the lawyer plays an indispensable role
in creating the legal infrastructure upon which the actual
business agreement is built. All of the above listed members of any given company can understand the business
arrangement reßected in the Þnal draft of the contract;
but none of them are capable of weaving every element
of the negotiated agreement onto a legal framework that
transforms that speciÞc agreement into a legally binding contract. That is why I characterize the lawyer as
the structural engineer of the contractual arrangement;
and as the structural engineer of the agreement, a lawyer must, when reviewing an English language contract,
look beyond the text itself and focus on the words that
create the legal infrastructure of the contract, namely, the
operative language.
Wilder, “Bauhaus Drafting“
For example, when skimming a contract, the phrase “Seller shall deliver ten apples on Friday” can be read and
understood on its face by any literate person; CFO, salesperson, and secretary alike. However, what the lawyer
sees, and others are oblivious to, are little words like
shall, may, must, if, when, entitled, etc., that create the
legal infrastructure of the contract. These are the critical
words that dictate the rights and duties of the parties, and
link the various elements of the negotiated agreement
into a functioning and legally binding contractual relationship. Therefore, lawyers reviewing English language
contracts must train their eyes so that these little, seemingly inconsequential, words jump off the page at them;
and accordingly, structure their own contracts so that these words jump off the page at other lawyers reading the
contracts that they themselves have drafted.
Having discussed the role the lawyer plays in creating
the infrastructure of the contractual relationship, we can
now turn our attention to the further exploration of the
tools used to create this legal infrastructure. The two operative language words that are of interest to us in this instalment are will and must. As discussed in the previous
instalment, generally shall is preferred to express duties,
however, will and must both have their time and place.
BRJ 01/2012
an incorporated right vests or a duty is owed. Therefore,
with English language contracts conventionally drafted
in the present tense, there is generally no need to employ
future tense grammar, and thus normally no reason to use
the word will at all.
However, having said that, there are a few very limited
exceptions to this general proscription of the word will in
English language contracts:
1) If a contract section grants a party discretionary authority
regarding a future event:
Choice of Color: The Buyer may choose the color the Painter
will paint the car.
2) A contract declaration that includes a statement regarding
intent:
Storage Facility: ABC Corp. and XYZ Ltd. intend to build a
storage facility that will serve as the regional transportation
hub. Each corporation shall contribute 50% of the cost to build
the facility.
3) If a contract section states a party’s belief or opinion about
the future:
ModiÞcation: As a condition to any modiÞcation of this agreement,
each party must obtain authorization from its Board of
Let us begin with the word will. As a general rule, will
Directors
and Stockholders. If, in the judgment of that party’s
should be avoided in English language contracts for seBoard
of
Directors,
the amendment will have a material adververal reasons. Firstly, will is simply a weak word to exse effect on the stockholders…
press duties. Secondly, the word will, almost by deÞnition violates the Golden Rule of Drafting: “Use the same
word to represent the same thing, use a different word
to represent a different thing.” The word will is the cornerstone of English grammar’s future tense. Therefore it
should be reserved for this purpose, and should not be
used to represent a duty, as English language contract
drafting convention has much more speciÞc and less
grammatically critical words such as shall and must to
accomplish this goal.
4) A covenant that includes a statement about the future:
Painting of Facility: The Contractor shall use reasonable efforts to locate a subcontractor who will paint the Facility
within 60 days.
5) If a section deals with a right that includes a statement
about the future:
Deposit: The Landlord is entitled to retain the Tenant’s Deposit
to the extent necessary to reimburse itself for any and all exThirdly, the word will should be avoided generally, let penses that it has incurred or will incur to repair the Tenant’s
alone to express duties, in English language contracts damage to the Premises.
due to the rather strict tense usage rules applied to English language contracts. Unlike in German contract drafting, which has a more ßexible view of contract tenses,
a well written English language contract should always
be written in the present tense. The rational behind this is
summed up by the well-worn legal expression, “the contract is always speaking.” This means that, from a common law perspective, the contract is not drafted “now”
to refer to future events, but rather is a living document
that’s provisions come into existence at the very instance
6) If a section of the contract warrants performance or a future state of facts:
Warranty: The Seller warrants to Buyer that the Product as packaged and shipped from Seller will be free from defects and
will function and perform to industry standards.
Unlike will, the word must plays an important, if limited, role
in modern English language contract drafting. However, it
should Þrst be noted that, as a general matter, the word must
91
92
BRJ 01/2012
Wilder, “Bauhaus Drafting“
is a bit too strong for the rather delicate Anglo Saxon temperament. Perhaps we all have ßashbacks of our mothers telling
us, “You must eat your spinach!” In any event, if must is used
in English language contracts, it should be used sparingly.
Having said this, the word must does not have a vital place
in the modern common law contract drafting universe. By
replacing an otherwise “average” shall with the word must,
the contract drafter immediately adds emphasis to the duty
in question. It is as if the drafter has put a shall in bold red
ink and underlined it. If you were to actually employ such
a means of emphasis in the text of a contract, of course,
it would look rather odd, so instead the English language
contract drafter uses the word must.
Legally of course, a duty is a duty, whether represented by
the word shall or must, and it has to be performed regardless of which word you use; but both as a matter of expediency and judicial interpretation, putting the other party on
notice in a slightly more dramatic fashion by using must
does have its place. For example, if a right is triggered, but
may vanish again if certain things are not done within a restricted time period, it is important to emphasize this fact to
the party subject to the potential forfeit of right due to lack
of compliance. Also, due to the “giveth and taketh away”
character of this contract provision, it behoves the careful
lawyer to stress the reality of the situation, so as to avoid a
soft hearted judge stepping in under claims of unfair warning. Therefore, modern drafting convention employs the
word must rather than shall in this situation.
Therefore, the most common and useful use of must in
modern English language contract drafting is when a condition is used to trigger a right, which itself may lapse if
certain criteria are not followed or met within a set time
period. For example, if I have an insurance contract and
someone breaks my window, my insurance will normally cover the damages, but only on if I notify them within
60 days of the breakage and provide at least three repair
estimates in writing. Thus, on the occurrence of an event
(the condition) I have a right, but that right might lapse if
certain criteria are not met within Þxed time window. In
order to stress the reality of a right coming into being, but
potentially going away again, the word must is employed.
The modern, concise way to structure this sort of contractual situation is the following:
If/When (Triggering Condition) (Party) must (criteria 1, 2, 3…) (time limit).
For example, the above described insurance policy might read:
If a window is broken, the policy holder must provide three repair estimates, in writing,
(triggering condition) (party)
(criteria 1,2,3….)
within 60 days.
(time limit)
Another example from an actual contract:
If Customer disputes any part of an invoice, then in order to withhold such amount from its
(triggering condition)
payment, Customer must notify TCS in writing as to the speciÞc amounts contested and the
(party)
(criteria 1,2,3…)
reasons for such dispute on or before the Due Date of the invoice.
(time limit)
This tried and true If…must pattern is an extremely useful structure to employ in creating a clear, succinct infrastructure
upon which this common contractual arrangement can be built.
Having now fully addressed the operative language used to creating duties, in the next instalment of this series we will
explore how most effectively and creatively to employ operative language to create rights and privileges in English language contracts.